6/13/2007

Eugene Volokh has a typically well-reasoned post on the AutoAdmit lawsuit that I mentioned here last night. The plaintiffs’ complaint includes numerous allegations of sexual threats and clear defamation; I set forth several of the nasty and explicit allegations in last night’s post.

Unlike Ann Althouse, whom I criticized for being too casually dismissive of the plaintiffs’ claims, Volokh shows familiarity with the underlying claims and the applicable legal standards.

Prof. Volokh first concludes, as I did in my own post, that the website operator is almost certainly not liable for the offensive posts.

As for the liability of the posters themselves, he says of the libel claims:

Some of the statements mentioned in the complaint may well be libelous, for instance the ones that accuse plaintiff of having herpes, and of being sexually promiscuous (assuming the statements are false, which I expect they are), or at least false plus highly offensive (which in these circumstances would suffice for a false light claim). They are on matters of private concern and about a private figure, so the defendants would be liable for actual, presumed, and punitive damages.

Defendants’ only defense would be that in context a reasonable reader wouldn’t understand the statement as a factual claim, but just a loose insult that lacks factual content (much as “motherfucker” may be insulting because of the connection to its literal factual meaning, but is almost always used as a pure insult and not a factual claim). That’s a not implausible defense, but far from a sure winner.

Indeed. If you look only at the statements that I excerpted in my post last night, you’ll see just a few of the offensive postings set forth. They include (language warning) a comment stating: “i would like to hate-fuck [Doe I] but since people say she has herpes that might be a bad idea.” I’d hate to be the guy defending that statement in court as a mere insult. Ditto the allegations that a plaintiff committed sexual assault, or had a lesbian affair with a law school admissions dean.

As to the claims for intentional infliction of emotional distress, Prof. Volokh says:

Some of the statements mentioned in the complaint may also be actionable as intentional infliction of emotional distress, because they do seem pretty outrageous when made in a publicly accessible medium. (I doubt the other causes of action are particularly strong, but the distress one might be.) Does the First Amendment preempt such claims?

Some of the statements may be interpreted as threats of rape and the like; if they are interpreted this way, again as opposed to loose hyperbole (see Watts v. U.S. for the leading hyperbole case, though one that arose in a political context), they may be constitutionally unprotected, and there would be no bar to tort liability for them.

The statements, recall, include statements like “i’ll force myself on her, most definitely” and “I think I will sodomize her. Repeatedly.” and “[c]learly she deserves to be raped so that her little fantasy world can be shattered by real life.” Those strike me as credible threats of rape — especially given that at least one of the AutoAdmit posters was following one of the plaintiffs around with a camera.

Most of the statements, though, are just general nastiness; and it’s not clear whether crude, personally insulting speech on matters of private concern about a private figure is constitutionally protected against intentional infliction of emotional distress liability.

Prof. Volokh argues that it should be, on a First Amendment/slippery slope basis. He acknowledges that “this is the sort of case where liability seems especially apt” but worries about the long-term consequences for free speech in other cases.

Prof. Volokh doesn’t appear to be arguing for First Amendment protection for threats, just for crude speech. I agree with him there, but I certainly believe some of the statements listed in the complaint are arguably genuine threats.

Volokh’s last point is that the people who made these statements may get outed by being named in the lawsuit, at considerable cost to their reputations.

The posters’ actions are pretty disgusting and unprofessional; they violate codes of basic decency endorsed by most of society, left, center, and right. If their identities are disclosed, they are likely to lose their jobs (or job offers), lose friends, and be set back for many years and by many hundreds of thousands of dollars in their careers.

Prof. Volokh’s analysis, in my view, is everything that Prof. Althouse’s is not. He shows a familiarity with the underlying allegations and an understanding of their outrageous nature. He shows a knowledge of the applicable legal standards and an understanding that there may well be a legal case against the posters, based on the defamatory and threatening nature of several of the statements. In short, he is not flippantly dismissive of the claims — either their outrageousness, or their legal merit.

It could be that Prof. Althouse’s knowledge of the facts and legal standards is as thorough as Prof. Volokh’s, but it sure didn’t come across that way in her post. Instead, her post communicated the message: there’s nothing here; you just have to put up with statements like this in the online world. As Prof. Volokh’s post makes clear, that’s far from clear. Given the specific facts of this case, the plaintiffs’ claims may well have legal merit.

15 Responses to “Volokh on the AutoAdmit Lawsuit”

the threats of rape seem actionable, as does the herpes allegation. following someone around with a camera sounds like stalking. even on the internet, free speech isn’t totally unlimited; i see no problem applying the old law to the new medium.

when the plaintiff traces those messages back to the computers which originated them, it would be most amusing if those computers turned out to be owned by tony, blue chip law firms, which could then be joined as defendants.

an incident raising similar issues happened recently at my old law school, hastings, which shut down for a day after someone posted a threat to do virginia tech-style carnage there. investigation revealed the perp to be a student at boalt (!) but the sf chronicle has yet to name this perp, which struck me as very unusual and suggested some sort of cover-up. out these knaves, every one!

Unfortunately, these kind of rape/violence threats are so common on the internet that it’s pretty much impossible to take them as anything other than hyperbole. Google the phrase “would you hit that” and you’ll see what I mean.

The people who indulge in this kind of behavior are the online equivalent of drunk frat boys.

I’m not a lawyer, but I am a journalist and have a passing familiarity with libel law. Essentially, we learned that truth is a defense against libel, and that there are different rules for public figures and private citizens, and that the concept of malice works in there somewhere. I was under the impression (perhaps falsely) that malicious, untrue comments about NAMED private citizens were actionable. But like I said, I’m not a lawyer, and I went to college 25 years ago.

The Internet, I figured (perhaps to myself), would have the same rules as newspapers and other public forums.

For example, say I decided to xerox a hundred copies of a picture of a private citizen and write “Wanted for Whoring” and then posted these all around her neighborhood. You’re gonna tell me that’s not illegal? Why is it different if it can be found on the Internet?

I’m glad I found this website, because from reading Ann Althouse and Glenn Reynolds, I thought I was in the twilight zone.

If I am a judge ruling on a motion to dismiss for failure to state a claim, I have one reaction. If I am a lawyer giving confidential and privileged advice to my client about the likely upsides and downsides of pursuing this lawsuit, I have a different reaction. If I am a lawyer considering taking this case on a contingent fee basis, I have yet another reaction. If I am an assistant district attorney considering whether to prosecute, I have still another reaction.

This same kind of lawsuit could have been brought in 1951 or 1898 if these sorts of allegations and threats had been stapled onto a (literal, non-cyberspace) law school bulletin board.

The conduct that has been alleged is certainly very ugly, and it may indeed give rise to civil or potentially even criminal liability. I couldn’t toss it out of court if I were a judge.

But I’d advise a client against pursuing a lawsuit based on it, I’d definitely refuse to invest my own time based on the prospects of recovering damages in such a case, and I probably wouldn’t prosecute it were I vested with a prosecutor’s discretion. Those cures bode likely to be worse than the affliction itself. There probably is no entirely satisfactory remedy, but I suspect turning to the legal system will end up making things worse overall for the victim.

Saying so doesn’t mean I sympathize at all with, or condone the actions of, the bad actors; and I say so with sadness, because in 1951 or 1898 shared societal notions of decency were generally adequate to prevent and, when necessary, punish such misbehavior without reference to the formal mechanisms of the law.

After reading both Althouse’s and Eugene Volokh’s posts, I tend to agree that the ultimate odds of success on the merits here are pretty low for the plaintiff. What I miss from Althouse’s post (most recently, and also in her original posts on this subject) is a full-hearted condemnation of this truly deplorable website, how ashamed those who created it and provided content for it should feel of themselves. Anybody who regularly engaged in that type of talk about a fellow human being lacks the requisite moral character to be a lawyer, in my opinion. I’m all for letting the names come out in discovery, then let the court of public opinion (and law firm hiring committees) impose punishment for their disgusting behavior.

I agree with everything in your comment 9 but I’d like you to expand on why you would counsel a plaintiff not to sue. My concern would be how ugly defamation and related suits can get for a plaintiff. Such claims put the plaintiff’s character in issue and much of what plaintiff has said or done in the past becomes fair game. Thus, in this case, defendant(s) might be able to go into plaintiff’s sexual, medical, or other personal issues. Is this what you were thinking about when you wrote your comment?

On the other hand, just as the Duke lacrosse players needed public vindication to get on with their lives, I understand why plaintiffs want to file suit. These plaintiffs probably want written apologies or a judgment to show to potential employers. While I doubt that filing suit will help them solve their employment problems – my experience is that legal employers shy away from controversy like this – people who file defamation claims are upset and feel betrayed. They never see the downside of pursuing these claims and it’s hard to make them see it.

I would bet the photos in question were put up publicly on Facebook / Myspace. I doubt they actually took the pictures themselves.

“it would be most amusing if those computers turned out to be owned by tony, blue chip law firms”

This would be worst case scenario for the plantiffs. You’re actively rooting that some of the best law firms in the world get sued? Wouldn’t that make their chance of winning the lawsuit 0% (as opposed to the 1-5% they have now.) Also, if they sued those firms, they’re never getting a job offer there.

I just have a tough time believing anyone can take the board comments seriously. If you look at the board, the signal to noise ratio is massive. It’s hard to believe that any comments from that board could be used as a credible argument towards someone not getting a job. Volokh was just dead on in his second post, especially in his analysis of interviewing the firms.

I think Anne was dismissive because they really don’t have much of a chance of winning the lawsuit. Volokh gave her a positive writeup for a reason. I think the real purpose of the suit was just to try to out the posters.